The actions of policing bodies towards community members, and more specifically, towards “victims” of crime, has been impossible to litigate in Ontario. In 2011, in the Wellington v. Ontario decision (2011 ONCA 274), the Court of Appeal firmly stated that there is “a long list of decisions rejecting the proposition that the police owe victims of crime and their families a private law duty of care in relation to the investigation of alleged crimes.” In Wellington v. Ontario, the family of a young man killed by two police officers sought to bring a claim in negligence against the Special Investigations Unit for various deficiencies in their investigation of the death; their claim was dismissed based on the Court of Appeal’s view that these types of claims were not grounded in any realistic duty of care given the public duties of policing bodies.

A couple of weeks ago, the Ontario Reports published Justice Grace’s decision on a summary judgment motion in a negligence action against police in Roe v. Leone et al., 2012 ONSC 6237, to little fanfare. But this is one to watch, my friends.

It’s a sad story involving allegations of HIV non-disclosure by a male individual, who was known at an early stage to both the Windsor Health Unit and to the Windsor Police as suspected of engaging in unprotected sex with various female partners. Both the Windsor Health Unit and the Windsor Police opposed the women’s claims on the grounds that there was no private law duty of care owed to the plaintiffs, who believe they became HIV positive after their encounters with the male individual. Despite their best arguments, Justice Grace refused to reject the statement of claim outright, indicating that the factual scenario envisioned by the claim did not fall within an established or analogous category establishing (or negating) a duty of care owed to these women. He then held that a determination of whether the Windsor Health Unit and / or the Windsor Police owe the plaintiffs a private law duty of care should be determined on a full evidentiary record at trial.

You know this decision will be appealed. And you know the relationships between the male individual, the female plaintiffs, the Windsor Health Unit and the Windsor Police will be examined in manners alternately offensive (the heavily stigmatized HIV positive male individual as a “sexual predator concerned with self-gratification”), dismissive (the women belonging to the faceless general public to whom the police owe no particular responsibilities), and philosophical (just what are the roles of public health initiatives and criminal laws in preventing HIV transmission?). What’s most notable, though, is that we may see the door open yet again – albeit only a tiny amount – to the possibility of civil suits against policing bodies on behalf of victims of crime. Keep an eye on this decision and where it goes.

Comments

Assuming that the Windsor police or public health authorities do have a duty of care to the public at large or some identifiable segment of it, what do our authors think these bodies could do to discharge that duty? Publish the HIV-positive individual’s name and picture in the media, including web sites and social media, with a warning about his HIV status? Caution people that they should be cautious about the HIV status of sexual partners, in general or because there is a known but unnamed individual out there having sex without disclosing his status? Put a tracking anklet on the HIV-positive man and go warn anyone he is seen with and considered a potential sexual partner about his health? What would be satisfactory?

The Jane Doe case in Toronto some years ago held that the police had a duty to warn women living in a fairly defined area of town that a rapist was attacking women in high-rise apartments in that area in a particular way. Is there a standard of care to be derived from that decision?

The authors seem to raise or imply the existence of four quite distinct fact patterns, where the duty of care and the standard of care in performing that duty may differ:

i) (Windsor – Leone – case): Duty to protect the public from the occurrence of a crime, or at least warn the public before a crime occurs. This would be a duty to potential victims of crime, enforceable mainly by people who have subsequently become victims because of an alleged failure to carry out the duty.

(ii) Duty to act reasonably in the exercise of one’s functions – so if someone is injured by police, the police are accountable civilly as well as criminally and in their employment for the harm they have caused. Thus the victims of ‘crime’ in that case are victims of police action, whether or not that action would itself be considered criminal.

(iii) (Wellington case): Special Investigation Unit’s duty to investigate police action (whether or not a ‘crime’) in a way that produces evidence that can be used by the person, or family of the person, harmed by the police in a civil action against the police (or possibly that results in some kind of legal sanction against the police involved.) Presumably any other body investigating police-caused harm would have a similar duty.

(iv) Extrapolating from the preceding case: duty of any police force investigating a crime to produce sufficient evidence to permit the victims of the crime to get a civil remedy, or possibly just enough evidence to allow for a successful criminal or regulatory action against the perpetrators.

These categories omit the duty to the public to investigate competently so that charges are not laid against the wrong person, or that wrongful convictions are not obtained. A case against the Hamilton police for negligent investigation recently failed right to the SCC. Cases of malicious prosecution have been brought but few have succeeded. These cases might be classified as a duty to non-perpetrators not to involve them.

Is it surprising or particularly disappointing that judicial decisions have not established a duty in most of these instances (and thus have avoided the need to say what the standard of care might be)?

This is an aspect of the general no “duty to rescue” – Good Samaritan problem absent legislative intervention creating that duty (assuming the “wrongdoer” hasn`t created the problem in the first place); aka the lack, in common law systems of a common law “duty of easy rescue”. As yourself whether it`s practical to create any sort of useful “bright line” that marks where “easy” ends.